Ellison v. State of Montana

December 20 2013
DA 13-0198
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 376
LIONEL SCOTT ELLISON,
Petitioner and Appellant
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 11-306
Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth J. Honaker, Honaker Law Firm; Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General; Helena, Montana
Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County
Attorney; Billings, Montana
Submitted on Briefs: November 13, 2013
Decided: December 20, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Lionel Ellison pleaded no contest to arson, a felony. He subsequently obtained
new counsel and moved to withdraw his no contest plea. The District Court denied his
motion to withdraw, which this Court affirmed. State v. Ellison, 2009 MT 408N, 354
Mont. 393 (table), 222 P.3d 645 (table). Ellison then petitioned for postconviction relief,
alleging ineffective assistance of counsel, and that the District Court misinterpreted the
arson statute. The District Court denied Ellison’s petition, and he now appeals. We
affirm.
BACKGROUND
¶2 On October 23, 2007, Ellison was charged with arson in violation of
§ 45-6-103(1)(a), MCA (2005), after a vehicle belonging to Dee Ames sustained fire
damage.1 On April 1, 2008, Ellison appeared with counsel Jeffrey Michael (“Michael”)
and entered a no contest plea to the arson charge. Ellison also filed an acknowledgement
of waiver of rights, which indicated that the State would recommend a five-year
suspended sentence pursuant to a plea agreement, but that Ellison could argue for a lesser
or deferred sentence.
¶3 During the offer of proof at the change of plea hearing, the prosecutor stated that
Ellison damaged a vehicle, and that the value of the vehicle exceeded $1,000. Prior to
the hearing, Ellison had obtained an appraisal of the vehicle, which identified its market
value as $500. Michael, however, determined that the value of the vehicle was irrelevant
1
Ellison’s offense was committed on May 19, 2007, and thus the 2005 Montana Code
Annotated applies. State v. Stoner, 2012 MT 162, ¶ 12, 365 Mont. 465, 285 P.3d 402 (we apply
the law in effect at the time the crime was committed).
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to the arson charge based upon his interpretation of the statute, and therefore did not
object to the prosecutor’s offer of proof.
¶4 The prosecutor also proffered that had the State gone to trial it would have
presented a surveillance video that showed an individual at the trunk of Ames’ parked
vehicle shortly before the fire started. The proffer continued that while it was difficult to
make out the identity of the individual seen on the video, the video was completely
inconsistent with Ellison’s version of events. In an affidavit Michael later gave in
response to Ellison’s petition for postconviction relief, Michael swore that he had
reviewed the surveillance video and made the video available to Ellison prior to the
hearing. Michael advised Ellison that the surveillance video was inconsistent with
Ellison’s story and that the State had enough evidence to find Ellison guilty beyond a
reasonable doubt at trial. Michael also explained to Ellison that the State had evidence
that Ellison offered to pay a potential witness to tell the same story as Ellison about the
fire, and that entering a plea to the arson charge would ensure that the State would not
charge him with witness tampering. Michael thus determined that the negotiated plea
agreement was in Ellison’s best interest, and advised him to enter a no contest plea.
¶5 After the change of plea hearing, Ellison substituted Michael with attorney Herbert
“Chuck” Watson (“Watson”). Watson then filed a motion to withdraw Ellison’s no
contest plea, arguing that Ellison did not enter it knowingly and voluntarily. The District
Court denied Ellison’s motion, finding that Ellison had been aware of the consequences
of his decision to enter a no contest plea, and that it was not improperly induced. On
May 26, 2009, Ellison was sentenced to five years with all time suspended. Ellison next
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appealed the denial of his motion to withdraw his no contest plea to this Court and raised
the singular issue of whether Ellison’s plea was knowingly and voluntarily entered.2 On
November 25, 2009, we affirmed the District Court’s ruling.
¶6 In February of 2011 Ellison filed a petition for postconviction relief, followed by
an amended petition, arguing that the arson statute only applied to property valued at over
$1,000, and since the vehicle at issue was worth less than that, there was no factual basis
for his no contest plea. His petition outlined three grounds for relief: 1) the District Court
erred by accepting a plea on an insufficient factual basis; 2) Michael provided ineffective
assistance of counsel by allowing Ellison to enter a plea for a charge that had an
insufficient factual basis; and 3) Watson provided ineffective assistance of counsel for
failing to raise the issue of the sufficiency of the factual basis of the arson charge on
direct appeal. In an affidavit supporting his petition, Ellison swore that Michael never
saw the surveillance video, and that Michael did not make the video available for Ellison
to view.
¶7 In its response, the State contended that Ellison’s claims were invalid and
procedurally barred. It attached affidavits of attorneys Michael and Watson to refute the
ineffective assistance of counsel allegations. On March 15, 2013, the District Court
denied Ellison’s petition on the merits, concluding that pursuant to the plain language of
2
Ellison’s grounds for arguing that his no contest plea was not knowingly and voluntarily
entered were as follows: there was new exculpatory evidence, the State had lost potentially
exculpatory evidence, his plea was induced by a threat to charge him and his mother with
witness tampering, and his plea was induced by the misrepresentation that he could receive a
deferred sentence.
4
the statute, the value of a vehicle is irrelevant to the charge of arson. The District Court
summarized its reasoning for denying the petition:
Petitioner has failed to demonstrate to this Court that he is entitled to
Postconviction Relief. Petitioner entered a knowing and voluntary plea, as
determined previously by this District Court as well as the Supreme Court
of Montana, waiving all right to challenge nonjurisdictional defects.
Regardless, this Court has examined the merits of Petitioner’s claim, and
found that Petitioner’s assertion that the State’s offer of proof was
insufficient is without merit. Petitioner erroneously interprets the arson
statute, arguing that the State was required to demonstrate that the vehicle
was valued in excess of $1,000. The plain meaning of the statute proves
otherwise. As such, Petitioner cannot demonstrate that the offer of proof
was insufficient, nor that his representation was ineffective.
Ellison now appeals the District Court’s denial of his petition for postconviction relief.
STANDARD OF REVIEW
¶8 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous, and whether its
conclusions of law are correct. Camarillo v. State, 2005 MT 29, ¶ 8, 326 Mont. 35, 107
P.3d 1265. Ineffective assistance of counsel claims present mixed questions of law and
fact that are reviewed de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280
P.3d 272.
DISCUSSION
¶9 Ellison argues on appeal that the District Court erred in its interpretation of the
arson statute, and in finding that Ellison’s defense counsel did not provide ineffective
assistance. Two different attorneys have represented Ellison relative to the arson charge:
trial counsel Michael, and appellate counsel Watson. Ellison alleges that both provided
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ineffective assistance of counsel. For reasons discussed below, we do not find either of
Ellison’s arguments convincing.
¶10 Whether the District Court Erred in its Interpretation of the Arson Statute
¶11 The Court’s first step in interpreting a statute is to look at its plain language. State
v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, 152 P.3d 1288. “In the construction of a
statute, the office of the judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted.” Section 1-2-101, MCA. If legislative intent can be determined by the plain
meaning of the words, the Court may go no further in applying any other meaning or
interpretation. State v. Booth, 2012 MT 40, ¶ 11, 364 Mont. 190, 727 P.3d 89 (citing
State v. Stiffarm, 2011 MT 9, ¶ 12, 359 Mont. 116, 250 P.3d 300).
¶12 Section 45-6-103(1)(a), MCA, states that a person commits the offense of arson
when,
by means of fire or explosives, the person knowingly or purposely . . .
damages or destroys a structure, vehicle, personal property (other than a
vehicle) that exceeds $1,000 in value, crop, pasture, forest, or other real
property that is property of another without consent. [Paragraph break
omitted.]
Ellison argues that the District Court erred in concluding that the arson statute clearly and
unambiguously states that the $1,000 threshold only applies to personal property. He
proposes that “$1,000” modifies all preceding categories of property listed in the statute,
including vehicles, and since the fire-damaged vehicle was worth less than $1,000, there
was an insufficient factual basis for which to enter a no contest plea to arson.
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¶13 In considering § 45-6-103(1)(a), MCA, in its entirety, the plain language clearly
states that the $1,000 threshold applies only to the category of “personal property,” which
does not include vehicles. As the District Court correctly noted, “vehicles are clearly not
included in the category of personal property, plainly evidenced by the phrase ‘other than
a vehicle.’” Ellison’s interpretation of the statute, which he concedes is not supported by
case law, is based on a partial reading of the statute which omits all the categories of
property that follow “personal property.”3 Such an interpretation violates our precedent
establishing that “statutes must be read and considered in their entirety and the legislative
intent may not be gained from the wording of any particular section or sentence, but only
from a consideration of the whole.” State v. Heath, 2004 MT 126, ¶ 27, 321 Mont. 280,
90 P.3d 426 (citing Home Bldg. & Loan Ass’n of Helena v. Fulton, 141 Mont. 113, 115,
375 P.2d 312, 313 (1962)). Ellison’s interpretation of the statute also violates § 1-2-101,
MCA, because it does not rely on the plain language of the statute, and instead relies on
the omission of the remaining categories of property. See State v. Cooksey, 2012 MT
226, ¶ 74, 366 Mont. 346, 286 P.3d 1174; State v. Gould, 273 Mont. 207, 219-20, 902
P.2d 532, 540-41; In re R.L.S., 1999 MT 34, ¶ 12, 293 Mont. 288, 977 P.2d 967; State v.
Incashola, 1998 MT 184, ¶ 13, 289 Mont. 399, 961 P.2d 745; Schuff v. A.T. Kelmens &
Sons, 2000 MT 357, ¶¶ 115-126, 303 Mont. 274, 16 P.3d 1002. The statute is clear on its
face, and therefore we may go no further in applying any other meaning or interpretation.
3
Ellison’s statutory analysis is premised on only the following portion of
§ 45-6-103(1)(a), MCA, the remainder of which he presumably omits to make his argument
appear tenable: “A person commits the offense of arson when, by means of fire or explosives, the
person knowingly or purposely: damages or destroys a structure, vehicle, personal property
(other than a vehicle) that exceeds $1,000 in value, . . . without consent.”
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As such, the District Court did not err in determining that the threshold of $1,000 for
property crimes does not apply to vehicles.
¶14 Whether the District Court Erred in Finding that Ellison’s Attorneys were not
Ineffective
¶15 The right to effective assistance of counsel is guaranteed by both the United States
and the Montana Constitutions. U.S. Const. amend. VI; Mont. Const. art. II, § 24. A two
part test determines when counsel is ineffective. First, a defendant must show that
counsel’s performance was deficient. Counsel is deficient when his or her conduct falls
below an objectively reasonable standard measured under prevailing professional norms
and in light of the surrounding circumstances. Whitlow v. State, 2008 MT 140, ¶ 20, 343
Mont. 90, 183 P.3d 861. Second, the defendant must also show that the deficient
performance prejudiced the defense. Prejudice occurs when counsel’s errors were so
serious that they deprived the defendant of a fair trial. Wilson v. State, 1999 MT 271,
¶ 12, 296 Mont. 465, 989 P.2d 813 (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2205, 2064 (1984)). In the context of a guilty plea, a petitioner establishes
prejudice by showing that there is a reasonable probability that, but for counsel’s errors,
he or she would not have pleaded guilty and would have insisted on going to trial. State
v. Henderson, 2004 MT 173, ¶ 9, 322 Mont. 69, 93 P.3d 1231. A defendant must satisfy
both parts of this test in order to prevail on an ineffective assistance of counsel claim.
Thus, if an insufficient showing is made regarding one part of the test, there is no need to
address the other part. Whitlow, ¶ 11 .
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¶16 Ellison bases his ineffective assistance of counsel claims on Michael’s and
Watson’s failure to advance at trial and on appeal, respectively, Ellison’s interpretation of
“value” in the arson statute. Additionally, Ellison argues that Michael did not review the
surveillance video or obtain an expert analysis prior to the change of plea hearing, and
that Watson did not raise the issue of the surveillance video on appeal.
¶17 Value of the Vehicle
¶18 Ellison maintains that both Michael and Watson were ineffective for not
addressing the factual sufficiency of Ellison’s no contest plea. He again argues that the
fact the vehicle was valued at less than $1,000 means that he could not have been charged
with arson pursuant to § 45-6-103(1)(a), MCA. As previously explained, this is an
incorrect interpretation of the plain meaning of the statute. A claim of constitutionally
ineffective assistance of counsel will not succeed when predicated upon counsel’s failure
to make motions or objections which, under the circumstances, would have been
frivolous, which would have been, arguably, without procedural or substantive merit, or
which, otherwise, would likely not have changed the outcome of the proceeding.
Heddings v. State, 2011 MT 228, ¶ 33, 326 Mont. 90, 265 P.3d 600; see e.g. State v.
Hildreth, 267 Mont. 423, 432-33, 884 P.2d 771, 777 (1994); State v. Maki, 2004 MT 226,
¶¶ 10-12, 322 Mont. 420, 97 P.3d 556; State v. Frasure, 2004 MT 305, ¶ 12, 323 Mont.
479, 100 P.3d 1013; Adams v. State, 2007 MT 35, ¶¶ 36-37, 336 Mont. 63, 153 P.3d
601; Foston v. State, 2010 MT 281, ¶ 13, 358 Mont. 469, 245 P.3d 1103. Because the
value of the vehicle is immaterial to the arson charge, it would have been frivolous for
either of Ellison’s attorneys to object or appeal on this issue. Thus, because Ellison
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cannot prove that either attorney was deficient in his decisions regarding the value of the
vehicle, he cannot establish an ineffective assistance of counsel claim on this basis.
¶19 Surveillance Video
¶20 Ellison also argues that Michael was deficient for failing to obtain an expert
analysis of the surveillance video prior to the change of plea hearing, and for failing to
object to its mention during the prosecutor’s offer of proof. Ellison further contends that
Watson was deficient for not raising this issue on appeal. Ellison relies on a report by an
expert in surveillance systems, obtained in support of his petition for postconviction
relief, which states that the surveillance video showed fire and smoke coming from an
unidentified vehicle, followed by the appearance of “one and two or even three barely
visible” unidentifiable individuals in the vicinity of the fire. The report notes, “it is truly
impossible to determine anything even remotely associated with actions taken or intent.”
Even though the report clearly states that the surveillance video is unreliable due to its
quality, Ellison nonetheless relies on the video to corroborate Ellison’s version of events.
¶21 Counsel has a duty to conduct reasonable investigations or to make a reasonable
decision that particular investigations are unnecessary. “In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Dawson v. State, 2000 MT 219, ¶ 75, 301 Mont. 135, 10 P.3d 49. Here, Michael’s
decisions not to object to the prosecutor’s reference to the surveillance video at the
change of plea hearing, or get an expert analysis of the video prior to the hearing, are
reasonable under the circumstances. Michael swore in his affidavit that he watched the
10
video prior to the hearing, and that he explained to Ellison that its contents were
damaging to Ellison. The fact that an expert witness later would conclude that the video
was not reliable does nothing to establish that Michael’s representation fell below an
objectively reasonable standard. In fact, it confirms that Michael’s decision not to retain
an expert in video surveillance was reasonable. Ellison therefore fails to establish that
Michael’s actions concerning the surveillance video were deficient.
¶22 For the same reasons, Watson’s decision not to raise the issue of the video on
appeal was also objectively reasonable under the circumstances. Furthermore, it is well
established that appellate counsel need not raise every colorable issue on appeal. Rose v.
State, 2013 MT 161, ¶ 28, 370 Mont. 398, 304 P.3d 387. Our presumption of effective
assistance of appellate counsel will be overcome only when “ignored issues are clearly
stronger than those presented.” Rose, ¶ 28. Watson’s affidavit states that he believed
Ellison had waived all challenges to the sufficiency of the State’s offer of proof by
entering the no contest plea, and thus chose to argue what he believed was Ellison’s
strongest argument—that his plea was not knowingly or voluntarily entered. Ellison has
presented no evidence that overcomes the presumption that Watson’s representation was
effective. Thus, Watson’s representation of Ellison cannot be deemed deficient.
¶23 Because Ellison cannot establish the deficiency portion of the ineffective
assistance of counsel test, we need not proceed with the prejudice analysis. As such,
Ellison’s ineffective assistance of counsel claims necessarily fail.
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CONCLUSION
¶24 The District Court properly interpreted § 45-6-103(1)(a), MCA, when it found that
knowing or purposeful fire damage to a vehicle, regardless of the vehicle’s value,
constitutes arson. Therefore, the District Court did not err in its interpretation of the
statute. Additionally, Ellison is unable to prove that either Michael or Watson provided
ineffective assistance. In sum, we affirm the District Court’s denial of Ellison’s petition
for postconviction relief.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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